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Main tower and main entrance at the Foothills Hospital in Calgary, on July 30, 2014.Alberta Justice and Solicitor General is appealing a recent Court of Queen’s Bench decision which ruled six portions of the Mental Health Act unconstitutional. Justice Kristine Eidsvik ruled on July 17 that the detention and medication of an unnamed homeless Indigenous man at a Calgary hospital against his consent was unconstitutional, giving the province 12 months to revise the Mental Health Act under which he was held.

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In its notice of appeal, filed Friday, the province questions whether Eidsvik “erred in law and/or fact in concluding that certain portions of the Mental Health Act are unconstitutional.” The legislation, she said, is not fully aligned with the Charter.

The man, identified as J.H. to protect his privacy, was certified under the Mental Health Act on Sept. 25, 2014, after being admitted to Foothills Medical Centre for unrelated injuries earlier that month.

He was told he could not contact a lawyer after multiple requests to leave and received treatment and medication he did not want or need. J.H. had no history of mental illness and it took nine months for him to be released after he challenged his certification in court.

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Eidsvik found multiple issues with how J.H. was detained. His renewal certificates were “incomplete or inadequate,” and neither J.H. nor his family were ever given written notices explaining why he was being held. Further, Eidsvik said AHS staff failed to tell J.H. that he had a right to seek legal advice.

The province is now asking the Court of Appeal of Alberta to throw out Eidsviks’ ruling, which found the hospital detained J.H. “to provide a form of residential care ‘because there is no other place for him,'” wrote Eisdsvik.

Legal advocates said they do not believe J.H. was held out of malice, but to ensure he could access a supportive living environment.

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Jason Morris, a Legal Aid lawyer with a focus on the Mental Health Act, told Postmedia in July that this might be an example of “psychiatrists using the powers under the Mental Health Act in a legally draconian way, in order to try to protect the best interest of a person who they felt didn’t really have any other kind of help. Unfortunately, (that’s) not uncommon to see.”

The province has applied to fast track the appeal, in which both J.H. and Alberta Health Services are respondents.